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Jonathan Coulton Song Used By Glee Without Permission 307

Posted by timothy
from the perhaps-they-can-call-it-willful dept.
FunPika writes "Jonathan Coulton, who is known for songs such as "Code Monkey", is claiming that his cover of "Baby Got Back" was used without permission on Glee, a television show aired by Fox Broadcasting Company. When the Glee version appeared on YouTube last week, Coulton suspected that it sounded similar to his cover, and several of his fans confirmed this by analyzing the two tracks. Despite Coulton contacting Fox, they continued with airing the episode and have placed the song on sale in iTunes."
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Jonathan Coulton Song Used By Glee Without Permission

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  • Old news (Score:2, Informative)

    by mveloso (325617) on Friday January 25, 2013 @08:44PM (#42697465)

    http://www.theverge.com/2013/1/18/3891836/glee-uses-jonathan-coultons-cover-of-baby-got-back-without-permission [theverge.com]

    There's no protection for a cover. However, the Glee people weren't nice because they didn't credit him for his ultra-boring cover of a great song.

  • Creative Commons (Score:4, Informative)

    by MoonRabbit (596371) on Friday January 25, 2013 @08:45PM (#42697467) Homepage
    specifically, the license Jonathan Coulton uses, allows for noncommercial use. Anyone want to argue that this is non-commercial use?
  • Re:Creative Commons (Score:5, Informative)

    by MrEricSir (398214) on Friday January 25, 2013 @08:49PM (#42697513) Homepage

    Huh? "Baby Got Back" is most certainly not licensed under Creative Commons.

  • Re:Old news (Score:5, Informative)

    by spazdor (902907) on Friday January 25, 2013 @08:53PM (#42697537)

    What Glee released is not a "cover." It actually samples his recording. If they'd re-recorded all the instrumental parts in the exact style that JoCo arranged them, they'd be in the clear. But they didn't. They sang, karaoke-style, over his instrumental recordings.

    From your link:

    (If Glee's producers used clips of Coulton's actual recording, like the duck sound, it's different: that would be copyright infringement of his sound recording.)

  • Re:Creative Commons (Score:2, Informative)

    by eksith (2776419) on Friday January 25, 2013 @08:56PM (#42697569) Homepage
    Yes, but he bought the rights to do the cover. The cover version is licensed CC.
  • Re:Old news (Score:1, Informative)

    by cob666 (656740) on Friday January 25, 2013 @09:01PM (#42697605) Homepage
    This is 100% accurate. When you license a song you have to pay two fees. The first is for whoever owns the copyright on the song, the second is for the actual recording. So, Coulton should have some recourse for his 'recording' of the song being used.
  • Re:Old news (Score:5, Informative)

    by spazdor (902907) on Friday January 25, 2013 @09:17PM (#42697727)

    It also notes that JoCo has posted that that happened:

    What's more, Coulton also believes that Glee's music directors also illegally sampled his version, noting specifically that the sound of a duck quacking...

    and then it goes on, undaunted by that detail, to talk about the legal ramifications of JoCo's claim assuming that the above is false, even though it gives absolutely no reason to doubt that it is true.

    https://soundcloud.com/alacrion/joco-v-glee [soundcloud.com] Here is a demonstration of the claim's truth. Now, like, let's keep on talking about why JoCo's legal claim has no merit in some other hypothetical universe where the Glee people actually went to the trouble of re-recording it, even though they didn't in this universe.

  • by dgatwood (11270) on Friday January 25, 2013 @09:26PM (#42697779) Journal

    According to the article, which was written by someone who knows nothing about copyright law, because it's a cover it's not really covered by copyright law.

    FTFY.

    A cover is a derivative work. It is covered by copyright to the extent that it contains new, original creative expression above and beyond the original work. So to say that "it's not really covered by copyright law" is pretty much completely wrong unless the cover sounds almost exactly like the original, which his cover clearly does not. At all.

    I don't really see how the melody he wrote for the song is not covered though, that isn't a copy of the original song at all. A song is not solely composed of lyrics.

    Oh, his melody is most assuredly covered by copyright. Unquestionably. Anyone who says otherwise is either deliberately lying or knows nothing whatsoever about copyright law. It's an independent musical expression sufficient to be protected on its own by copyright if not combined with those lyrics. Therefore, it is protected just the same as any other artistic creation. If Fox really stole his original melody, and continued to use it even after having been informed that their use was not authorized, that meets the criteria for willful infringement. I believe the words "treble damages" come to mind.

    Based on what I'm reading, it sounds like Fox isn't remotely on the right side of the law here. I would strongly urge Mr. Coulton to contact a lawyer who specializes in copyright cases. What Fox's lawyers are telling him is complete bulls**t, and they're pretty much pissing their pants hoping he doesn't sue, because they have a pretty good idea how many figures they'll lose if he does.

    I would also strongly urge Mr. Coulton to file a proper takedown request with Apple. This forces Fox to put all their cards on the table, and gives them notice that you intend to take action if they don't come to a reasonable settlement. It also takes their content off of iTunes for at least a few days, during which they're losing a metric f**kton of sales. This has a tendency to force their lawyers to take your claims seriously, where they otherwise might not.

    That said, IANAL, and this is not legal advice except for the the "you should contact a copyright lawyer" bit.

  • Did you listen? (Score:5, Informative)

    by Junta (36770) on Friday January 25, 2013 @09:27PM (#42697783)
    We aren't talking about someone doing a 'similar' cover, we are talking about Fox, by all appearances, using his Karaoke track verbatim against his license and singing over it. Hell, even the lyrics kept "Johnny C's in trouble" instead of the original lyrics. Analysis suggests they even had to work a bit to try to edit out a duck quack from his track, but still left some sign of that quack behind.

    In fact, reports are that the show lifts a *lot* of differently done arrangements of well known songs done by obscure people without permission without a shred of apologetic tone or credit given.

    But at least it is equal opportunity, a fair number of more well known musicians whose songs have been featured aren't exactly pleased to hear their works crop up in that show either.
  • Re:Creative Commons (Score:5, Informative)

    by Brucelet (1857158) on Friday January 25, 2013 @09:45PM (#42697875)
    JoCo explicitly notes in his store [jonathancoulton.com] that his covers are not CC.
  • Re:Old news (Score:5, Informative)

    by bcrowell (177657) on Friday January 25, 2013 @09:52PM (#42697905) Homepage

    What Glee released is not a "cover." It actually samples his recording.

    And Coulton's version isn't just a cover either. If you listen to the Sir Mix-a-Lot version and then to the Coulton version, Coulton's puts the lyrics to a melody that wasn't there in the original rap song. Coulton owns the copyright of this melody.

  • by Anonymous Coward on Friday January 25, 2013 @10:08PM (#42697975)

    It's worth pointing out that this was released under Creative Commons "Attribution-NonCommercial [creativecommons.org]" license, which means anyone can adapt (remix, sing over, etc.) and distribute it, but must give due credit to the original author and must not use it for any commercial purpose.

  • by Brucelet (1857158) on Friday January 25, 2013 @10:15PM (#42698001)
    Actually, as I noted elsewhere [slashdot.org], Coulton explicitly states on his online store that his covers are not CC-licensed.
  • by Anonymous Coward on Friday January 25, 2013 @10:16PM (#42698005)

    FTFY.

    A cover is a derivative work. It is covered by copyright to the extent that it contains new, original creative expression above and beyond the original work. So to say that "it's not really covered by copyright law" is pretty much completely wrong unless the cover sounds almost exactly like the original, which his cover clearly does not. At all.

    And your post is written by someone with no knowledge of copyright law. Talk about the blind leading the blind.

    Covers of audio recordings are NOT infringing derivative works for the purpose of the Copyright Act. A copyright holder cannot stop or successfully sue over any individual's derivation of a song so long as the mechanical license is paid. This does not have to be negotiated, because 17 USC 115 provides for a compulsory license rate for such action.

    A recording of the cover is entitled to copyright protection as a work of the cover artist, not the original artist.

    The issue isn't the cover version, but in reality, the use of a sampled recording of Mr. Coulton's, a totally separate issue and a fairly straightforward form of copyright infringement if true. However, depending on the use of the recording and who owns the copyright in that recording, it's possible that the show actually did clear the use. That is all completely notwithstanding your response to the other poster, who was actually closer to correct than you are.

    The power to create covers is not an exclusive right of a copyright holder. A cover is not a protected class of derivative work.

    IAAL, and you should stop presenting yourself as an expert.

  • Re:Old news (Score:4, Informative)

    by Ungrounded Lightning (62228) on Friday January 25, 2013 @10:49PM (#42698183) Journal

    What would be even more convincing would be reversing the phase of one and summing them. ...

    However, while the phasing effect from such a recording would pop out at you, if you have good stereoscopic hearing this is just as convincing: The instrumental is heard at the center, one lyric performance on the left, the other on the right. If the instrumentals were a cover rather than phase-identical they'd be heard as a "chorus" - unison performances - by two guitars, one on each side.

  • by NemosomeN (670035) on Friday January 25, 2013 @10:54PM (#42698205) Journal
    Parody is protected as fair use. Copying parody is not.
  • Re:frist post? (Score:4, Informative)

    by Brucelet (1857158) on Friday January 25, 2013 @11:41PM (#42698437)
    Perhaps because Coulton was noted on Slashdot long before [slashdot.org] he wrote songs for Valve.
  • by Anonymous Coward on Friday January 25, 2013 @11:43PM (#42698455)

    Coulton got the ok to do a version of baby got back. He did a new and unique arrangement and performance. Glee did an identical rip-off of his song without permission, then aired it and put it on itunes for purchase.

    Original: http://www.youtube.com/watch?v=kY84MRnxVzo [youtube.com]

    Coulton's: http://www.youtube.com/watch?v=MCWaN_Tc5wo [youtube.com]

    Glee rip: http://www.youtube.com/watch?v=Yww4BLjReEk [youtube.com]

    You'll notice the second two are identical and very different from the first.

  • by C0R1D4N (970153) on Friday January 25, 2013 @11:59PM (#42698517)
    There is separate licensing for covers and derivative works. Coulton only got a license to cover, although his certainly an original take on it, he has no special ownership over his version, anyone else getting a license to cover can perform a version identical to coultons.
  • by dgatwood (11270) on Saturday January 26, 2013 @12:41AM (#42698657) Journal

    Covers of audio recordings are NOT infringing derivative works for the purpose of the Copyright Act. A copyright holder cannot stop or successfully sue over any individual's derivation of a song so long as the mechanical license is paid. This does not have to be negotiated, because 17 USC 115 provides for a compulsory license rate for such action.

    I never said that they are infringing. I merely said that they are derivative works. Whether they are infringing or not depends on whether you have a license (whether compulsory or otherwise). If they were not derivative works, you wouldn't need a license.

    Also, compulsory licensing is basically irrelevant here. Fox doesn't have a compulsory license for his music. Nobody does compulsory licensing when distributing something to millions of people. Glee has an average of something like 9 million viewers, so that would cost them the better part of a million bucks in compulsory licensing fees. Major labels and TV networks and the like always negotiate a much lower rate than the statutory rate, or else they don't use your music.

    A recording of the cover is entitled to copyright protection as a work of the cover artist, not the original artist.

    I never said otherwise. Please reread what I said. The recording is entitled to copyright protection as a recording, in that the recording itself is an artistic work above and beyond the original. However, because it is a derivative work, the copyright protection extends only to changed elements (which includes the recording itself, by virtue of the fact that it isn't the original recording).

    However, if I create a cover of a song and then somebody else does a cover of a song, and if we both imitate something that is present in the original recording, I can't sue over it, because the original recording holds copyright over that element, and mine does not. Not that this has any relevance in this particular case, of course. And that is what I mean when I say that copyright covers only changed elements.

    The issue isn't the cover version, but in reality, the use of a sampled recording of Mr. Coulton's, a totally separate issue and a fairly straightforward form of copyright infringement if true.

    No, that's only part of it. The issue is that Mr. Coulton's "cover" set a rap song to music that did not exist in the original work. Therefore, the music itself has a copyright separate and independent from the recording. So if they used the music, that's a copyright, violation, and if they used the actual recording, that's a second copyright violation.

  • by welsh git (705097) on Saturday January 26, 2013 @01:16AM (#42698771) Homepage

    wtf.... BONGOS gave the copyrights to the song over the Jagger and Richards? that is fucked up....that song is 99% not written by those douche bags.

    Then you obviously haven't heard the mix they are talking about:

    "Song credits

    Although the song's lyrics were written by Verve vocalist Richard Ashcroft, it has been credited to Keith Richards and Mick Jagger after charges by the original copyright owners that the song was plagiarized from the Andrew Oldham Orchestra recording of The Rolling Stones' 1965 song "The Last Time"."

    https://www.youtube.com/watch?v=MKC5cdGBY04 [youtube.com]

  • by Anonymous Coward on Saturday January 26, 2013 @01:29AM (#42698801)

    The Glee version shows characteristic loss of data above 16k -- this was ripped from an mp3 or other lossy format at some point.

  • by adamdoyle (1665063) on Saturday January 26, 2013 @03:21AM (#42699065)

    In copyright law (and in most, if not all, areas of IP) there is a defense called "equitable estoppel." The copyright owner's lack of action against an alleged infringement that he or she knows about can sometimes be interpreted as permission to continue use. There's also a defense called "laches" (pronounced: "latches") which can be employed in response to unreasonable delays in prosecution.

  • by _KiTA_ (241027) on Saturday January 26, 2013 @04:14AM (#42699205) Homepage

    There is separate licensing for covers and derivative works. Coulton only got a license to cover, although his certainly an original take on it, he has no special ownership over his version, anyone else getting a license to cover can perform a version identical to coultons.

    Except the Berne Convention gives him copyright over the derivative work. They cannot just steal it and say "welp, it's a cover, so you have no rights." Especially since it's an original arrangement (he didn't just sing along to the original instruments).

    And it's not that they just got a licence and decided to do an acoustic, folk-like version like Coulton did. They literally used inverse phase wave mapping to remove the vocals on his song, then sang the same lyrics, including the "Johnny C's in Trouble" line (whereas the original was "Mix-a-Lot's in Trouble"), and this is key: On top of his original instrumental track.

    They blatantly stole a song online, are attempting to profit from it, and oh yeah, the producer for Glee basically taunted Coulton on Twitter, suggesting he should be happy he got ripped off.

    Oh, and did I mention that this isn't the first time they've done it? By far?

  • by _KiTA_ (241027) on Saturday January 26, 2013 @12:20PM (#42700771) Homepage

    They literally used inverse phase wave mapping to remove the vocals on his song, then sang the same lyrics, including the "Johnny C's in Trouble" line

    Although the Glee version is a very close reproduction, I don't think it's done by channel phase inverting trick because that technique results in a mono backing track, and their backing track is clearly stereo. Plus if you listen closely on headphones you can hear they're using different drum samples and the instruments sound a bit different.

    However, it's worth noting that the only thing used in Jonathan Coulton's cover from the original is the lyrics. The cover has completely new chord progression and vocal melody that doesn't exist in the original rap at all. Essentially in this case the "cover" is a completely different song with the lyrics from "Baby got back", so I think it's still a clear copyright violation regardless of how they reproduced Coulton's music.

    Here's a version where someone synched up the two versions via the first few instrumental hits at the start of the song:
    https://soundcloud.com/alacrion/joco-v-glee [soundcloud.com]

    Literally they are note for note the same as far as instrumental bits go. Ok, there are SMALL differences are when they used the audio version of a poorly done photoshop job to remove certain elements, like the duck quacking (which can still be heard, faintly), but, that's just me.

    And yeah, it's a clear copyright violation. And the guys from Glee should know better. However, I *believe* their stance is that JoCo is just some silly little Internet artist and they can get away with this because what can he do, eh?

    I personally think they vastly underestimated how big his followings are on the Interwebs, and how loud us computer nerds can be when we feel one of our own (remember, Coulton was a Slashdotting computer programmer before making it big as a musician) is being thrown under the bus.

  • Re:frist post? (Score:4, Informative)

    by DaTrueDave (992134) * on Saturday January 26, 2013 @12:30PM (#42700833)

    The in-game version was sung by Ellen McLain, but JoCo sang on the Portal Soundtrack. Here's one of his versions: https://www.youtube.com/watch?v=sxNmeMklFk8 [youtube.com]

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